CJEU Rules on Employer Dress Policy Discrimination

This month, the European Court of Justice (“CJEU”) have handed down their long-awaited decisions in two recent cases concerning religious dress codes in the workplace. The judgments came as a bit of a surprise.

In the case of Achbita v G4S Solutions, the CJEU ruled that a dress code policy banning employees from wearing religious symbols or clothing does not necessarily equate to discrimination.

The case concerned a Muslim woman who was dismissed by the Belgian arm of G4S for wearing an Islamic headscarf to work, contrary to the employer’s policy. She argued that the company’s dress code was discriminatory. G4S argued it was important to their business to portray a position of neutrality in their customer-facing roles.

The CJEU found the rule did not constitute direct discrimination. The reasoning was that G4S’s policy was applied equally to all religions, requiring all employees to dress in a “neutral manner”. As long as this policy was applied evenly to all employees, there was no direct discrimination.

The CJEU did, however, hold that such a policy could constitute indirect discrimination. Indirect discrimination arises where an employer puts in place a provision, criterion or practice (a “PCP”) which results in a disadvantage to someone holding a particular protected characteristic, here being religion. This rule is enshrined in UK law by the Equality Act 2010, which also protects discrimination of employees on grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, sex and sexual orientation.

A difference of treatment will not amount to indirect discrimination where the PCP is justified by a legitimate aim and if the means of achieving it are appropriate and necessary. The CJEU emphasised that these questions will always be for national courts to decide, however they did provide some guidance. Referring to the G4S case, they suggested that the desire to project an image of neutrality was legitimate, and the ban on symbols could be appropriate as long as applied consistently. It will be for the employer to demonstrate these points.

The judgment does little to change the position under UK law and how we implement the EU directives; however, it does highlight the need for employers to carefully consider dress code and uniform policies. Are they applied evenly? Is there a legitimate aim? Are the measures appropriate and proportionate?

If your business has any concerns about its dress code policy, please contact our employment team who will be happy to advise.